Ever since president Richard Nixon
signed it into law on June 23, 1972, Title IX and exactly what rules it implies
has been a topic for much debate. One of the more hotly debated areas of the
law was added, in a 1975 revision of Title IX, what’s known as the contact
sport exemption (CSE). According to Blake J. Furman, this exemption
“Essentially… declared that separate teams for each sex were permitted, but a
woman had to be allowed to try out for a men’s sports team if there was no
women’s team in that sport and if the sport was a non-contact sport” (Furman,
p. 1173). This would seem to be a relatively fair ruling, but for the lack of
any firm definition of what constitutes both contact and non-contact sports.
The law does give some indication of this though, stating that “Contact sports
under the Title IX regulation include boxing, wrestling, rugby, ice hockey,
football, basketball and other sports in which the purpose or major activity
involves bodily contact” (“Equal Opportunity in Intercollegiate”, 2015). This
definition still seems to be lacking though, as it leaves in the phrase “other
sports in which the purpose or major activity involves bodily contact” (“Equal
Opportunity in Intercollegiate”, 2015), giving a substantially wide berth to
anyone wishing to misuse the language to justify sexual discrimination. This
poor clarification has given cause to several court cases in the past forty-six
years, some of which will be disused in this paper.

first of these, and probably the most well-known, is the case of Mercer v. Duke
University, in which “Heather Sue Mercer challenges the federal district
court’s holding that Title IX provides a blanket exemption for contact sports”
(Mercer v. Duke University, 1999).

 This case was an appeal, on the part of Mercer,
of “her claim that Duke University discriminated against her during her
participation in Duke’s intercollegiate football program” (Mercer v. Duke
University, 1999). Before she began attending at Duke, the plaintiff had been a
successful all-state kicker at her school in Yorktown Heights, New York. Upon her
entry into Duke at the start of the 1994-1995 school year, Mercer became the first,
and only, girl to try out for the Duke football team as a walk-on kicker, though
she failed to make the team. She did however begin serving as team manager for the
1994 season, and regularly attended practices and joined the team in conditioning
drills the spring of 1995. Then in April of 1995 the seniors of the Duke football
team selected Mercer as their kicker for that springs Blue-White intrasquad scrimmage
game. In this game Mercer kicked a 28-yard game winning field goal, to grant her
team a 24-22 victory. 


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